State v. Ladabouche
| Decision Date | 02 April 1968 |
| Docket Number | No. 398,398 |
| Citation | 243 A.2d 769,127 Vt. 171 |
| Parties | STATE of Vermont v. George E. LADABOUCHE. |
| Court | Vermont Supreme Court |
Patrick J. Leahy, State's Atty., and Alan W. Cheever, Asst. Atty. Gen., for the State.
Peter Forbes Langrock and Mark L. Sperry, Middlebury, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, jj.
The respondent, George E. Ladabouche, has taken his appeal here from the judgment of the Chittenden County Court, following a jury trial with a verdict of guilty, on an information charging the respondent with stealing property from the person of another. 13 V.S.A. Sec. 2503.
Respondent first contends that the lower court was in error in not granting his motion for a verdict directed in his favor made at the close of all the evidence in the trial below.
State v. Ciocca, 125 Vt. (64) 67, 73 (209 A.2d 507), with citations there given omitted.
The respondent was accused of robbing one Napoleon Barber of more than $200 on the night of August 22, 1966. Viewing the evidence in the light most favorable to the State it appears that on the night in question the 79-year old Barber, carrying his wallet with $235.00 therein, went from Burlington to Winooski.
His claimed intention was to pay a bill that he owed in Winooski. However, upon his arrival in the latter city, he decided to tarry for a while in several bars before completing his mission. During this interlude, Mr. Barber consumed both whiskey and beer in such amounts that, to use his own words, When Mr. Barber once more regained some understanding of time and place he found himself in front of a pool hall, but without his wallet and its contents.
Covering the time gap in Mr. Barber's own testimony was the testimony of three girls, Joyce Gorton, Mary Corwin and Nancy Ladabouche, witnesses produced by the State. The last named of the girls is a sister of the respondent.
The testimony of the girls was that they encountered the rather unsteady Mr. Barber on a street in Winooski, that he talked with them for some period of time, gave them a dollar to buy some soft drinks, and followed them to the entrance to a stairway that went up to the Ladabouche apartment. At this time and place all of the girls testified that George Ladabouche, the respondent, suddenly appeared behind Mr. Barber and wrestled him to the floor.
Joyce Gorton and Mary Corwin, at this juncture, fled up the stairs, although they could hear exclamations uttered by Barber indicating that a struggle was in progress. Nancy Ladabouche, however, remained at the scene until she was directed by her brother to 'go get Glen Richards.'
Richards, also a State witness, testified that he was playing cards in the apartment of Lyle Church when Nancy appeared and gave him the message from her brother. At the entrance to the Ladabouche stairway he found Barber held fast on the floor by the respondent in what Richards described as a 'full nelson.' Directed by the respondent to 'grab his wallet' Richards followed the direction and returned to the Church apartment. A little later the respondent appeared there and he and Richards split the contents of the wallet, with each giving Nancy a ten-dollar bill, presumably as a reward for her aid in the matter.
Nancy Ladabouche corroborated the testimony of Richards on the division of the spoils. Another State witness, Robert Ladabouche, a brother of the respondent testified that the respondent admitted to him the robbery of Barber.
The respondent's defense was an alibi. He testified that during the entire time that the robbery was taking place that he was playing pool in Al's Pool Room with his uncle, Lyle Church. His alibi claim was supported only by the testimony of Harry Barton, pool room manager. Barton, when asked if the respondent was in the pool room at all times relevant to the alleged crime, stated 'As far as I know, I didn't see them go out.'
The further testimony of the respondent was that the first he knew of the whole matter was when Mr. Barber appeared at the pool room and announced that he had been 'rolled' by some girls, one of which the respondent suspected to be his sister. Respondent denied that he had stolen any money from Mr. Barber and asserted his belief that the witnesses for the State were lying about the matter.
Viewed in the light most favorable to the State, the evidence just related would justify a jury in finding the respondent guilty beyond a reasonable doubt, which is the test. Stste v. Perras , 117 Vt. 163, 167, 86 A.2d 544. The lower court was correct in denying the motion of the respondent.
We now consider the various exceptions of the respondent to the admission of evidence in the trial below which admission respondent claims to have been both erroneous and prejudicial. In this Court objections are briefed to the admission of testimony of Mr. Barber that upon discovering the loss of his wallet he noticed two young men following him, as well as to certain testimony given by Mary Corwin in which she stated that she believed Nancy Ladabouche was telling the truth when she implicated her brother in the offense. Whatever may be the merits of the objections briefed here the record disclosed that respondent made no objection to the admission of this evidence at the trial.
An objection to evidence must be made at the time it is offered. Where evidence comes in without objection, all right of objection is waived. No question may be brought to this Court except upon which it is made to appear that the trial court has had fair opportunity to pass judgment. L'Ecuyer v. State Highway Board, 124 Vt. 462, 465, 207 A.2d 260; Merrill v. Reed, 123 Vt. 248, 185 A.2d 737.
Some of the testimony given by Mary Corwin was concerned with the remarks made by the respondent to his sister Nancy, relative to a statement given by Nancy to the authorities on the alleged robbery, at the county jail. Her testimony was that respondent asked Nancy, 'What did you sign that statement for.' On re-direct examination, Miss Corwin was asked by the State 'And do you know whether that statement indicated that George had been involved in the incident you have described here.' Over objection by respondent that this question called for an opinion from the witness she was permitted to answer.
But any merit attaching to the objection was waived when the respondent asked Miss Corwin almost the identical question and received the same answer. Grygiel v. Grygiel, 68 R.I. 155, 26 A.2d 743, 744; Jaqueth v. Town of Guilford School Dist., 123 Vt. 382, 388, 189 A.2d 558.
Respondent also objects to the refusal of the lower court to allow him to...
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...Court has approved the use of the false, fabricated or fictitious type of alibi instruction in the past. See State v. Ladabouche, 127 Vt. 171, 177, 243 A.2d 769, 773 (1968); State v. Conley, 107 Vt. 72, 76, 176 A. 300, 302 (1935); State v. Ward, 61 Vt. 153, 194, 17 A. 483, 491 (1888). We ci......